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Surajmall Shiwbhagawan Vs. Kalinga Iron Works - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 158 of 1978
Judge
Reported inAIR1979Ori126; 48(1979)CLT104
ActsCode of Civil Procedure (CPC) , 1908 - Sections 20; Contract Act, 1872 - Sections 28; Evidence Act, 1872 - Sections 114
AppellantSurajmall Shiwbhagawan
RespondentKalinga Iron Works
Appellant AdvocateP. Roy and ;M. Sinha, Advs.
Respondent AdvocateS. Mohanti and ;P. Mohanti, Advs.
DispositionRevision allowed
Cases ReferredPatel Bros. v. Vadilal Kashidas Ltd.
Excerpt:
.....assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 5. in view of the admitted fact that the defendant resides and carries on business in calcutta and the unchallenged finding that the cause of action for the suit arose in barbil within the jurisdiction of the keonjhar civil court, the courts in calcutta as well as those in keonjhar have jurisdiction to try the suit. it is well settled that where two courts or more have jurisdiction under the code of civil procedure to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public..........from that judgment (at p. 149):--'(3) when one of the parties to a contract signs a printed form printed by the other party containing the words 'subject to the jurisdiction of a place q' and sends the order form to the other party it must be assumed that the party agreed that q is the place for the settlement of disputes. it is not open to a person who signs an order form of the opposite party containing the printed words to say that the printed words are not part of the contract. to take the view taken by the learned judge of the madras high court would be to upset the commercial practice of india, and unless such a position, is necessary in view of the wording of any particular section, i am not prepared to take that view, i am not prepared to upset the commercial practice of.....
Judgment:
ORDER

S. Acharya, J.

1. The defendant has preferred this revision against the order passed by the Subordinate Judge, Keonjhar on 21-1-78 in Money Suit No. 1 of 1975.

2. The plaintiff is a unit of the Industrial Development Corporation of Orissa, Ltd. The defendant-firm carries on business in Calcutta. The plaintiff's suit, in short, is for realisation of certain amount of money claimed on the basis of the balance dues on the defendant on account of supply of goods by the plaintiff to the defendant and on account of loss sustained by the plaintiff due to payment of demurrage and other amounts due to the default of the defendants as specified in the plaint. The defendant while denying the plaintiff's claim has alleged that the court at Keonjhar has no territorial jurisdiction to try this suit as no part of the cause of action arose within the jurisdiction of this Court and the plaintiff had entered into an agreement with the defendant to the effect that ell disputes between the parties arising out of the said contract would be settled in Calcutta or by the courts in Calcutta.

3. After the filing of the written statement and framing of the issues in the suit, on the petition of the defendant, the court below took up for decision the issue No. 2 namely: 'Has this Court jurisdiction to try the suit?' and by the impugned order it has arrived at the finding that the court at Keonjhar has jurisdiction to entertain and try this suit. The defendant has preferred this Civil Revision against the said order.

4. Ext. C dated 1-II-71 is the purchase order sent by the defendant to the plaintiff by which the defendant placed orders with the plaintiff for supplying certain varieties of pig iron from its concern at Barbil in the Keonjhar District to the defendant in Calcutta. The plaintiff on receipt of Ext. C sent its work order Ext. A dated 2-11-71 to the defendant. The supply of pig Iron by the plaintiff from. Barbil to the defendant In Calcutta started from 13-11-71, The above facts and the finding of the court below that the cause of action for the suit arose at Barbil within the jurisdiction of the Keonjhar Civil Court are not challenged in this revision.

5. In view of the admitted fact that the defendant resides and carries on business in Calcutta and the unchallenged finding that the cause of action for the suit arose in Barbil within the jurisdiction of the Keonjhar Civil Court, the courts in Calcutta as well as those in Keonjhar have jurisdiction to try the suit. It is well settled that where two courts or more have jurisdiction under the Code of Civil Procedure to try a suit or proceeding an agreement between the parties that the dispute between them shall be tried in one of such courts is not contrary to public policy (AIR 1971 SC 740); (1978) 46 Cut LT 89 : (AIR 1978 Orissa 167); and AIR 1979 Mad 16 and 21). According to the defendant, petitioner herein, both the parties had agreed that the jurisdiction for determination of any dispute arising out of the contract between the parties would be only in Calcutta whereas the plaintiff contends that there was no such contract of agreement between them.

6. The defendant in support of his assertion to the above effect depends only on Exts. C and B. At the top of Ext. C, the purchase order dated 1-11-71, it is printed 'All subject to Calcutta jurisdiction.' The purchase order Ss typed in defendant's own letterhead and issued by the defendant, and it has not been signed by the plaintiff. By the mere recital of the said words at the top of Ext. C and by sending the same to the plaintiff it cannot be said that the plaintiff agreed to confine settlement and adjudication of all disputes between the parties relating to the contract only at one place i. e. in Calcutta or only in the Courts at Calcutta and nowhere else. Ouster of court's jurisdiction, should not be easily construed and cannot be assumed or presumed very easily. Ouster of jurisdiction must be proved by express words or by necessary or inevitable implications. Merely by mentioning. 'All subject to Calcutta jurisdiction' by one of the parties at the top of his purchase order, it cannot be said that the jurisdiction of other courts, which can be legally approached by the other parties under the Civil Procedure Code or under any other law, is ousted by the said words. My above view gets support from the decision reported in AIR 1959 Mad 227 Patel Bros. v. Vadilal Kashidas Ltd. wherein it has been held (at p. 228):

'Ex, P I says that the transaction Es 'subject to Bombay jurisdiction.' But it does not exclude the jurisdiction of any other court. In my opinion ouster of jurisdiction of a court to which a person Is entitled to resort to under the Civil Procedure Code or any other statute cannot be a matter of assumption or presumption but one to be proved by express words contained in the contract or at least by necessary or inevitable implication.'

Mr. Roy, the learned counsel for the petitioner, submits that the above view has not been accepted in the decision reported in AIR 1963 Guj 148. That decision was given entirely on different context and facts, which is evident from what Is stated and held in the following passage extracted from that judgment (at p. 149):--

'(3) When one of the parties to a contract signs a printed form printed by the other party containing the words 'subject to the jurisdiction of a place Q' and sends the order form to the other party it must be assumed that the party agreed that Q is the place for the settlement of disputes. It is not open to a person who signs an order form of the opposite party containing the printed words to say that the printed words are not part of the contract. To take the view taken by the learned Judge of the Madras High Court would be to upset the commercial practice of India, and unless such a position, is necessary in view of the wording of any particular section, I am not prepared to take that view, I am not prepared to upset the commercial practice of India unless the law requires me to do so. There is nothing in the law to hold that the expression 'subject to jurisdiction of Q' printed at the top of a form may not bind M who signed the order form.'

Towards the end of para 4 of that judgment it is said (at p. 150):

'xxxxx This is not a case of a ticket or a receipt taken by the plaintiffs but this is a case of an order placed by the plaintiffs themselves on a form signed by them and whatever is contained in the form would be binding on them in view of the signature on the form xx xxx'

In the Gujarat case one of the parties to the contract signed a printed form printed by the other party containing the words in bold type 'subject to Madras Jurisdiction' and sent that order form to the other party. On those facts one can say that the party who signed such a printed form consciously agreed that the place of settlement or adjudication of disputes would be Madras and not at any other place. So all that has been stated in para 5 of that decision apply only to cases of that nature. There is nothing in that decision to run contrary to the above view taken by me on the facts of this case. The Madras decision on the point was rendered on facts similar to the facts in the present case.

7. In the present case before me the letterhead on which the purchase order Ext. C was typed had been printed by the defendant and he only signed and sent the same to the plaintiff for supply of certain materials. So all the contents id Ext, C emanated from the defendant and the plaintiff had not in any manner appended its approval or assent to any part of it. Rather very soon after the latter received Ext. C, on 2-11-71 it sent its own terms of business as contained in Ext. A to the defendant, which indicates that the defendant's order was accepted or intended to be accepted only on the terms and conditions stated in Ext. A. Clause 22 of Ext. A is as follows:--

'Clause 22 -- All contracts to which the corporation's Terms of Business and General understandings relate, shall be deemed to have been entered into at Barbil in the district of Keonjhar, Orissa, for the purpose of jurisdiction and in the event of any dispute, arising out of any such contract neither party to any such contract shall be competent to bring a suit in regard to any matter, by any such contract at any place outside the local limits of that jurisdiction of the Courts in the district of Keonjhar, Orissa.'

Therefore, even If it is said that the recital 'All subject to Calcutta jurisdiction' printed on Ext. C was a condition for acceptance of the purchase order, from the above facts it is evident that that condition was not accepted by the other party to the contract i.e. the plaintiff, and so it has had no binding effect on the plaintiff.

8. It is next contended by Mr. Roy, the learned counsel for the petitioner, that apart from the above recital on the top of Ext. C, the defendant by his letter to the plaintiff dated 8-11-71, copy of which is said to be Ext. B, expressly intimated to the latter that in view of the above statement in the purchase order (Ext. C), the jurisdiction for adjudication or settlement of all disputes and controversies relating to and arising from the said purchase order, would be Calcutta and not Keonjhar. The plaintiff has expressly denied receipt of any such letter. According to the defendant that letter was sent under certificate of posting, Ext. B/1. No doubt, under the said certificate of posting one letter addressed in the name of the plaintiff was posted in the Calcutta R. M. S. Post Office on 8-11-71. Merely on the proof of the said certificate of posting, it is extremely difficult to hold that the original of the letter Ext. B was actually sent to the plaintiff on that date. No doubt, the court Under Section 114 of the Evidence Act may presume that the common course of business has been followed in particular cases and so if it is proved that a particular letter was posted on the address of a particular person it may be presumed that the letter was received at the other end. In this case Ext. B/1 does not indicate whether the letter posted to the plaintiff under that certificate of posting was an envelope, inland letter or a postcard. Ext. B is on the letterhead of the defendant. There is no direct, clear-cut, and convincing evidence on record that the original of Ext. B was actually put in an envelope and that particular envelope was posted under Ext. B/1. So long that fact is not established, it would not be possible for the court to draw the presumption that the copy of the letter Ext. B was posted and received by the plaintiff. D. W. 2, is the only witness who has dep6sed about the posting of the letter under Ext. B/1. He has not stated that the original of the letter Ext. B/1 was actually enclosed by him or by somebody in his presence in an envelope, and that envelope was posted under the certificate of posting. At one stage in his cross-examination, he stated that he did not remember if he sent any letter relating to this case. He has further admitted that all important letters of the defendant's firm which were intended to definitely reach the other party were posted by registered post. If that was so, it is not understood why the said letter containing such an important term of the contract, was not sent by registered post. Moreover, this witness could not say if he had sent any other letter to any body relating to this contract. Because of his halting and vacillating statements in this respect his deposition does not inspire confidence. In the absence of positive proof of the fact that the original of the letter Ext. B was actually enclosed in an envelope and that envelope was actually posted in post office, even the rebuttable presumption Under Section 114 of the Evidence Act cannot be drawn. In this connection, the decisions reported in AIR 1978 Cal 123 and AIR 1971 Ker 231 should be seen.

Moreover it is seen that there is absolutely no mention about the said alleged letter or at least the effect thereof in the written statement. As the defendant takes his stand on the question of jurisdiction of the court on the posting of the original of Ext B he should have, as provided Under Rule 6 Rule 9 C.P.C. mentioned about that letter or at least referred briefly to the effect thereof in his written statement, as the contents of the alleged letter were material and the said materiel facts were capable of being evidenced by a document as alleged by the defendant. Total silence about the alleged document or the effect thereof in the written statement creates suspicion about the defendant's plea on this aspect, more so when this is considered in the context and background of other facts discussed above.

On the above considerations and discussions, it is extremely difficult to hold that the original of the letter Ext. B was posted by the defendant or received by the plaintiff. As that fact is not established, the reciial in Ext. B that 'If we do not hear anything from you contrary to what we stated, we take it that you have accepted our condition of jurisdiction' is of no avail or effect.

9. On the above considerations I agree with the finding of the court below that there was no contract between the parties ousting the jurisdiction of the civil court at Keonjhar for the institution of the suit in question. As the petitioner now does not challenge the finding of the court below that the cause of action for the suit arose in Barbil within the jurisdiction of Keonjhar civil court, the court below has jurisdiction to try the suit. So this civil revision, challenging the jurisdiction of the court below to try the suit in question, has no merit and it is accordingly dismissed with costs. Hearing fee Rs. 100/-.


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